Reagan Nat'l Adver. of Austin, Inc. v. City of Austin
| Decision Date | 27 March 2019 |
| Docket Number | 1:17-CV-673-RP |
| Citation | 377 F.Supp.3d 670 |
| Parties | REAGAN NATIONAL ADVERTISING OF AUSTIN, INC., and Lamar Advantage Holding Company, Plaintiffs, v. CITY OF AUSTIN, Defendant. |
| Court | U.S. District Court — Western District of Texas |
B. Russell Horton, Taline Manassian, George Brothers Kincaid & Horton, LLP, Austin, TX, Bradley E. McLain, SettlePou, Dallas, TX, for Plaintiffs.
Henry Gray Laird, III, City of Austin Law Department, Austin, TX, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
By ordinance, the City of Austin prohibits new digital signs for off-premises signs, but permits them for on-premises signs. The plaintiffs own and operate billboards. They contend that the City's different rules for on- and off-premises signs is an unconstitutional restriction of speech under the First Amendment.
At the parties' request, the Court held a bench trial on this question on June 26, 2018. The parties submitted pretrial briefing, (Pls.' Br., Dkt. 25; City Br., Dkt. 30; Pls.' Resp., Dkt. 34), joint stipulated facts, (Dkt. 26), and proposed findings and fact and conclusions of law, (Dkts. 27, 29). Both parties then submitted post-trial briefing. (Dkts. 37, 38, 40, 42). Having considered parties' submissions, the evidence and argument at trial, and the applicable law, the Court now enters the following findings of fact and conclusions of law.1
Plaintiff Reagan National Advertising of Austin, Inc. ("Reagan") filed 50 permit applications to install digital sign-faces on billboards throughout the Austin area. (Am. Stip. Facts, Dkt. 26, at 3). Defendant City of Austin ("the City") denied the applications, citing city code ("the Sign Code") that prohibits the installation of digital faces on "off-premise" signs. (Id. ). Shortly after, Lamar Advantage Holding Company ("Lamar") filed 23 permit applications, which the City denied on same grounds. (Lamar Am. Compl., Dkt. 13).
Reagan filed suit in Travis County and the City removed to federal court. (Not. Removal, Dkt. 1). Lamar joined the case as an intervenor plaintiff. (Order on Mot. Intervene, Dkt. 9). Reagan and Lamar then filed amended complaints, which assert identical causes of action and requests for relief. (Reagan Am. Compl., Dkt. 19; Lamar Am. Compl., Dkt. 13). Reagan and Lamar assert their claims based on the Sign Code in effect at the time that the City denied their permit applications. (See Reagan Am. Compl., Dkt. 19, at 2; Lamar Am. Compl., Dkt. 13, at 2).The City revised Chapter 25-10 on August 17, 2017, after all of Plaintiffs' applications were denied. (See Ord. No. 20170817-072, Dkt. 37-20).
Reagan and Lamar assert that the distinction between on- and off-premises signs in the Austin Sign Code is an unconstitutional content-based restriction of speech, both facially and as applied to Reagan and Lamar. (Reagan Am. Compl., Dkt. 19, at 7; Lamar Am. Compl., Dkt. 13, at 5). They seek a declaratory judgment that Chapter 25-10, or any relevant part of that chapter, is an unconstitutional content-based regulation of speech; that it is invalid and unenforceable on its face; that it is invalid as applied to Regan and Lamar; and that Reagan and Lamar are "allowed to convert [their] outdoor advertising signs to digital copy without having permits issued." (Id. ).
The parties stipulated to the following facts, which are not contradicted anywhere in the record. (Am. Stip. Facts, Dkt. 26). Although the parties submitted separate proposed findings of fact that feature slightly different wording, (see Dkts. 27, 29), they are identical in substance. The Court therefore adopts the Joint Proposed Amended Stipulated Facts as its own findings.2
Plaintiffs Reagan and Lamar are companies in the business of outdoor advertising, which includes ownership and operation of billboards throughout the City of Austin and surrounding area. (Am. Stip. Facts, Dkt. 26, ¶¶ 2–3, 6).
Chapter 25-10 of the Austin Sign Code distinguishes between "on-premise" signs and "off-premise" signs. Under the Sign Code in effect at the time of Plaintiffs' applications, a sign is an "off-premise" sign if it advertises something not located where the sign is installed or directs people to any location other than the site of the sign itself. Section 25-10-3(11) (current version at Section 25-10-4(9) ). Billboards are off-premises signs. (Am. Stip. Facts, Dkt. 26, ¶ 9). The Sign Code allows construction of new on-premises signs but prohibits new off-premises signs. (Id. ¶ 10). Existing off-premises signs are deemed "nonconforming signs," which were lawful when installed but no longer comply with the current Sign Code. (Id. ¶¶ 10–11); see Section 25-10-3(10). The Sign Code prohibits changes to "non-conforming signs," including existing off-premises signs. (Id. ¶ 10).
The Sign Code allows digital sign-faces for on-premises signs but prohibits digital sign-faces for off-premises signs. (Id. ¶ 12); see Section 25-10-102(6) (); Section 25-10-152(B)(2)(b) ().
The City's stated general purpose in adopting the Sign Code, including the sign regulations at issue in this lawsuit, is to protect the aesthetic value of the city and to protect public safety. (Id. ¶ 13).
On April 17, 2017, Reagan submitted 50 permit applications to install digital sign-faces on existing sign structures. (Id. ¶ 14). The next month, the City of Austin denied all 50 of Reagan's applications. (Id. ¶ 16). Reagan then submitted another 11 permit applications to install digital sign-faces on existing sign structures in June. (Id. ¶ 17). In July, the City of Austin once again denied all 11 of Reagan's applications. (Id. ¶ 18). In the denial letters, the City stated that "[t]hese applications cannot be approved under Section 25-10-152 (Nonconforming Signs) because they would change the existing technology used to convey off-premise commercial messages and increase the degree of nonconformity with current regulations relating to off-premise signs." (First Regan Denial Letter, Dkt. 36-2, at 1 ("Ex. J-4"); Second Reagan Denial Letter, Dkt. 36-3, at 68 ("Ex. J-7") ).
On June 29, 2017, Lamar submitted 23 permit applications to install digital sign-faces on existing sign structures. (Am. Stip. Facts, Dkt. 26, ¶ 21). In August, the City of Austin denied all of Lamar's applications. (Id. ¶ 22). In its denial letter to Lamar, the City stated that "[t]hese applications cannot be approved under Section 25-10-152 ... [and] the longstanding prohibition codified in Section 25-10-102 (Signs Prohibited in All Sign Districts )," which prohibits off-premises signs that are not authorized under any other provision of the Sign Code. (Lamar Denial Letter, Dkt. 36-4, at 68 ("Ex. J-9") ). Reagan and Lamar have submitted into evidence a complete list of the subject properties for which the City denied permits to install digital sign-faces. (Ex. A, Dkt. 26-1; Ex. B, Dkt. 26-2).
The parties also stipulate that the City amended Chapter 25-10 on August 17, 2017, after the City denied all of Reagan and Lamar's permit applications. (Am. Stip. Facts, Dkt. 26, ¶ 27; see Ordinance No. 20170817-072, Dkt. 36-11, at 4–20; Section 25-10 (as amended 2017), Dkt. 36-12, at 1–33).
The Court also finds the following additional facts, which were undisputed and submitted during and after the bench trial. First, the amendments to the City Code did not alter Section 25-10-152, which prohibits new digital sign-faces for billboards. Section 25-10-152(B)(2)(b) (current version at Section 25-10-152(B)(2)(b)(2017) ).3 However, the amendments did change the definition of an "off-premise" sign. The old Sign Code in effect at the time of Reagan and Lamar's applications provides that an off-premises sign is "a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site." Section 25-10-3(11) (current version at Section 25-10-4(9)(2017) ). The new Sign Code provides that an off-premises sign is "a sign that displays any message directing attention to a business ... activity, events, person, institution, or other commercial message which is generally conducted ... or occurs elsewhere than on the premises where the sign is located ..." Section 25-10-4(9) (2017).
Reagan and Lamar argue that the distinction between on-premises and off-premises signs in the Austin Sign Code is an unconstitutional content-based restriction of speech because it "treats on-premise and off-premise signs differently and defines them in such a way that requires one to read the sign to determine which kind of sign it is and what ordinances apply." (Pls.' Br., Dkt. 25, at 2).4 They contend that "[i]f the Sign Code must be read to determine what ordinances apply," it is not content-neutral and therefore subject to strict scrutiny. (Id. ).
Before reaching the merits of Reagan and Lamar's claim, the Court must consider two preliminary questions. Now that the City has amended parts of the Sign Code, is this lawsuit moot? And if their claim is otherwise moot, do Plaintiffs have a vested right to have their applications considered under the Sign Code in effect at the time that they applied?
Sua sponte , the Court recognized and raised the possibility of mootness during the bench trial. The parties submitted argument at trial and post-trial briefing on this question. (Dkts. 37, 38, 40, 41, 42).5
If a court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). A case is properly dismissed for lack of subject matter jurisdiction when the court lacks "the statutory or...
To continue reading
Request your trial
-
City of Austin v. Reagan Nat'l Adver. of Austin, LLC
...parties stipulated to the pertinent facts, the District Court held a bench trial and entered judgment in favor of the City. 377 F.Supp.3d 670, 673, 683 (WD Tex. 2019). As relevant, the court held that the challenged sign code provisions were content neutral under Reed v. Town of Gilbert , 5......
- Wooten v. Roach
-
Morris v. City of New Orleans
...that would apply strict scrutiny to all regulations for signs with written text. Reagan Nat'l Advert. of Austin, Inc. v. City of Austin, 377 F.Supp.3d 670, 680 (W.D. Tex. 2019). The Court finds the reasoning of the Western District of Texas doctrinally interesting. But not persuasive, or de......
-
Adams Outdoor Advert. Ltd. v. City of Madison, 17-cv-576-jdp
...P'ship by Adams Outdoor GP, LLC v. Pennsylvania Dep't of Transportation, 930 F.3d 199, 207 n.1 (3d Cir. 2019); Reagan Nat'l Advertising of Austin, Inc., 377 F. Supp. 3d at 681; Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F. Supp. 3d 952, 968-69 (N.D. Cal. 2015). The only exception......
-
Supreme Court Provides Guidance On When Speech Regulations Are Content-Based And Level Of Scrutiny Applicable In Commercial Speech Cases
...this view. Footnotes 1. 576 U.S. 155 (2015). 2. 138 S. Ct. 2361 (2018). 3. Reagan Nat'l Advert. of Austin, Inc. v. City of Austin, 377 F. Supp. 3d 670, 673 (W.D. Tex. 4. Id. at 681. 5. Id. at 682. 6. Reagan Nat'l Advert. of Austin, Inc. v. City of Austin, 972 F.3d 696, 706 (5th Cir. 2020). ......